“The Plaintiff has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ under Article 5 must necessarily encompass the Plaintiff’s right to live with dignity as a male and be legally accorded judicial recognition as a male.” Justice Nantha Balan

Some salient points:

Page 31

Arahan Jabatan Pendaftran Negara Bil. 9/2007 paragraph 5.7.1 states that change in gender marker on identification card is not allowed except with a court order. Four documents that are required to change name and gender on the identification card:

Court order that includes the details of the requested gender

Supporting letter from a government doctor (if available)

Letter to confirm gender affirmation surgeries by the hospital that provided the services

The courts in Malaysia use Corbett vs Corbett and Bellinger vs Bellinger as precedents. Based on the precedents, four criteria are considered, which includes: chromosomal, gonadal, genital and psychological factors. However, neither chromosome nor genitals determine our gender identity. The current change of name and gender change process is based on operative status and medical intervention.

In addressing the chromosomal criteria, Judge Nantha Balan followed the approach taken by the Family Court in Australia in Attorney General For the Commonwealth v Ken and Others 2003, where “the court emphasized on the importance abandoning the chromosomal factor and highlighting the imperative need to view the matter from the physiological and physiological perspective.”

Justice for Sisters is appalled by the news of a trans woman who was fined RM 700 on June 21 for failing to produce her identification card. She apparently stated that she had just been released from jail and suffered from tuberculosis. The Deputy Public Prosecutor (DPP) Nur Farah Adilah Noordin urged the court to impose a heavy sentence to serve as a lesson. The woman was not represented in court.

Access to justice, and the right to redress and remedy are our fundamental human rights guaranteed in several clauses of the Universal Declaration of Human Rights and the Federal Constitution. In 2011, after hearing that ‘an estimated 80% of those tried in court for criminal offences did not have legal representation,’ the Malaysian government launched the National Legal Aid Foundation. Despite this effort, many people continue to be tried in court without representation, and as a result are imposed harsh and sometimes excessive penalties.

Because of their gender identity and the resulting systemic and social discrimination and prejudice, trans people are even more vulnerable and disproportionately face barriers when attempting to access justice. They are arrested more frequently, and hence encounter a higher incidence of trial without representation. Based on media reports and our documentation, at least 63 trans women were arrested between January and May 2016 in Penang, Kuala Lumpur, Malacca, Kedah and Pahang by police and the state religious departments for simply being themselves.

It is extremely distressing that the DPP urged the court to impose a heavy sentence simply to serve as a lesson to the trans woman for failing to produce her IC, while ignoring her reasons. The DPP’s heavy handed recommendations are problematic, and underscore the multiple forms of stigma, discrimination and prejudice that the trans woman was subjected to because of her gender identity, history of being jailed and having a criminal record, history of drug use, and so on.

In Malaysia, the system causes and reinforces the targeting and discrimination trans people. Trans people are not allowed to change their name, gender, and the last digit in their identification card number or in any other legal documents. The government’s refusal to allow trans people to change details in their identification documents to reflect trans people’s authentic identities makes trans persons vulnerable to stigma, discrimination and violence, including denial of employment opportunities, humiliating experiences when forced to use their identification card, and arbitrary arrests, among others.

The imposition of punitive measures increases the challenges and barriers for people, especially transgender persons with criminal records, to reintegrate themselves into society, as they are continuously penalised over non-issues. This has a lasting and negative impact on a person’s wellbeing. In addition, the state must understand and address the barriers that people with criminal records face in securing jobs, finding housing, reconciling relationships with friends and family among others. It is absurd and inhumane to continue penalising and profiting from people who have been failed by the system.

Media

We are further appalled by the continuous misgendering and the use of inaccurate terms by the media, such as Bernama, to address transgender persons. Trans women are not cross dressers. Overwhelming evidence shows that trans people have existed throughout humanity, and gender identity refers to a personal sense of belonging and identification to being a girl/woman, boy/man, neither, both, a combination of gender categories and more. All identities are normal.

The news focused on her clothing and accessories, which was unnecessary and sensationalist. All people, including transgender persons have the right to self-determination to their identity, and freedom of expression. We call on the media to adopt a positive role in the promotion of human rights, and not reinforce prejudices that bar marginalised people from living their lives with dignity.

Justice for Sisters is concerned by the unnecessary panic over the recent formation of the transgender committee in Pulau Pinang. The response completely overlooks the reality of violence, discrimination and marginalization faced by transgender persons in Malaysia. Justice for Sisters wholeheartedly welcomes the committee as a positive move in understanding violence and marginalization faced by transgender persons.

Based on media reports and our documentation, at least 63 trans women had been arrested in Penang, Kuala Lumpur, Malacca, Kedah and Pahang by police and the state religious departments for simply being themselves, between January and May 2016 alone.

Number of transgender women arrested by the authorities, namely police and state religious departments according to states in Malaysia between January and May 2016

State/Month

January

February

March

April

May

Total

Penang

–

–

13

–

3

16

Kuala Lumpur

4

6

5

11

9

35

Malacca

–

–

–

–

4

4

Kedah

–

–

–

1

–

1

Pahang

–

–

–

–

7

7

Total

4

6

18

12

23

63

In addition, there are also reported cases of transgender women arbitrarily stopped by the authorities and blackmailed for bribes. I am scared to be a woman, a report by the Human Rights Watch on violence faced by transgender persons in Malaysia further provides cases of arbitrary arrests on the basis on their gender identity, as well as physical, emotional, verbal, and sexual violence experienced by trans women during arrests and detention. The report also documents violence faced by transgender persons in accessing basic rights, including education, employment, and healthcare among others.

Overwhelming evidences affirm that gender identity is an innate part of our being. Sex[1] and gender are two separate categories that all human beings have, and gender is not determined by genitalia. Gender is a spectrum signifying personal sense of belonging and identification (as a girl/woman, boy/man, both, neither, other gender identities).

This research along many with psychological, anthropological and other evidences further affirm that transgender persons have existed throughout humanity, and they do not impersonate, pretend or cross dress. Transgender people merely express their identities, like cisgender[2] persons.

Moreover, contrary to popular beliefs, most major religions and faith, including Islam, Hinduism, and Buddhism acknowledge the reality of gender diversity in humanity. Religious leaders, including Lord Rama, Prophet Muhammad, and Gautama Buddha have shown acceptance and recognized transgender persons in their lifetime.

Islam – Islam recognizes diversity in sex and gender. Islam recognizes that sex spectrum and is not merely determined by genitals, evidenced by the recognition of khunsa wahdid and khunsa musykil. Mukhannathun, term used for transgender women, existed Mecca and Medina, and worked as matchmakers among others. There are also references that show mukhannathun were permitted in cisgender women spaces, and cisgender women did not have to cover their modesty around mukhannathun.

Hinduism – Hinduism is rich with narratives that acknowledge diverse gender identities. In the epic Ramayana, Lord Rama, who is banished from kingdom, is followed by a group of people into the forest. He asks all the men and women to leave, and they do. However, those who do not identify with both categories did not move. Lord Rama was impressed by their devotion, and blessed them. In Mahabaratha, Arjuna transitions, and changes her name to Brihannala. Brihannala lives in a harem where she teaches women art, dance and music. Some transgender women also believe that they are descendants of Mother Goddess Bahuchara Mata.

Social justice and liberation from misery and oppression, including slavery, patriarchal systems, poverty, have been central themes of religion. Overwhelming evidence show that transgender persons being subjected to arrested simply for being who they are; experience bullying and violence in school; lack employment opportunities; mistreated in healthcare settings and more. Transgender persons as a population is misunderstood, marginalized, and face multiple forms of violence and discrimination because of their gender identity.

We now live in a time with increased visibility, understanding and research regarding gender identity and transgender persons. We call for dialogues to dispel harmful myths and assumptions about transgender persons, and to understand the marginalization faced by trans people in Malaysia. Together we must end marginalization and violence towards transgender persons, and liberate each other from oppression.

[1] Sex refers to a combination of our chromosomes, external and internal sexual reproductive organs, hormones, and secondary sexual characteristics. The common misconception is that sex only consists of female (XY) or male (XX) chromosomes. However, there are also people with diverse types of chromosomes (XXX, XO, XXY, etc.), hormones, and physical characteristics outside of the male/female binary, who are known as intersex.

[2] A person whose lived experience match the gender assigned at birth based on genitals is known as a cisgender person.

Justice for Sisters strongly criticises the Deputy IGP’s statement on LGBT persons. It is important to understand that gender identity and sexual orientation are innate parts of our identity, and these categories are a spectrum, meaning not made out of only two identities (binary).

Gender identity is a spectrum signifying personal sense of belonging and identification (as a girl/woman, boy/man, both, neither, and other gender identities). Further, and most importantly, gender identity is not determined by genitals. A person whose lived experience match the gender assigned at birth based on genitals is known as a cisgender person. While a person whose lived experience does not match gender assigned at birth is known as transgender, gender queer or fluid and others. The growth in our understanding of the spectrum of gender has moved gender recognition legislations in many countries that now no longer require medical intervention before recognising gender identities.

Sexual orientation on the other hand refers to our romantic and sexual attraction towards others. Sexual orientation is also spectrum, which includes

Heterosexual – person who identifies as a woman who is attracted to people who identify as man, vice versa

Bisexual – person who identifies as a man who is attracted to people who identify as man and woman, vice versa

Gay – person who identifies as man attracted to people who identify as man

Lesbian – person who identifies as woman attracted to people who identify as woman

Asexual – no or limited sexual desires towards others. Romantic attraction may or may not exist

Pansexual – people whose attractions are not based on gender identity or sexual orientation

Queer – people whose attractions are not based on gender identity or sexual orientation

All sexual orientations are normal, fluid, and personal. Our romantic and sexual attraction, a feeling that most people have, cannot be dictated by anyone, including the state and its institutions.

We are concerned that the Deputy IGP’s statement will further perpetuate homophobia and transphobia within and among police officers and departments. I am Scared to be a Woman, a report by Human Rights Watch also documented multiple forms of violence experienced by transgender persons by the police. This includes arbitrary arrests based on gender identity; arbitrary urine tests, which makes trans women vulnerable to sexual violence, body shaming and humiliation by police officers, who are typically cisgender men; extortion of money or sexual favours; lack of urgency and bias in investigating police reports lodged by transgender persons; sexual violence, amongst others.[1]

Other anecdotal evidence by trans women further shows similar trend of persecution and abuse by the authorities. Gay men on the other hand are subjected to blackmails, extortions and more. Underlying this impunity by the police are the discriminatory, colonial and archaic laws that criminalize consensual non heteronormative sexual acts (the Penal Code 377), state syariah laws that criminalize transgender persons based on their gender identity and gender expression (male persons posing as a woman), the consistent anti-LGBT rhetoric, including hate speech from the state and its institutions, among others.

Police departments and officers must reflect the diversity of the community that they serve. The reality is LGBTQ people are part of society, and the state has the duty to protect all people, not just some people. Further, it is extremely counterproductive when people fear the police. LGBTQ persons often do not report cases of violence because of the attitude, lack of urgency and bias by the police in investigating police reports lodged by LGBTQ persons. Further, LGBTQ persons are subjected to intrusive and irrelevant questionings about their gender identity (e.g. “Are you a man or woman?” based on IC, misgendering), gender expression (e.g. “Are you a man or woman?” based on appearance), and sexual orientation. As a result, many cases go unreported and uninvestigated. This is also a deprivation of our fundamental right to redress and remedies.

All persons have a right to employment, and discrimination based on sexual orientation, gender identity and gender expression remains a problem for LGBTQ persons in seeking employment opportunities. LGBTQ persons are forced to hide their sexual orientation, gender identity and gender expression at work, and live double lives, which increases stress and anxiety of being found out. In addition, transgender persons and gender fluid or gender queer or gender non-conforming persons are subjected to multiple forms of discrimination based on gender identity and gender expression during job interviews, which effectively reduces their job prospects.

We call the Deputy IGP to understand the issues faced by LGBTQ persons, review his statements, and engage with LGBTQ groups in a meaningful way to address the issues faced LGBTQ persons in relation to the police.

Understanding sex and gender is imperative in ending violence and marginalization of transgender persons

Overwhelming evidence affirms that gender identity is an innate part of our being, and sex and gender are two separate categories that all human beings have. Neither sex nor gender are binary, meaning consisting of only two identities.

Sex – a combination of our chromosomes, external and internal sexual reproductive organs, hormones, and secondary sexual characteristics – is a spectrum, and does not determine our gender identity. The common misconception is that sex only consists of female (XY) or male (XX) chromosomes. However, there are also people with diverse types of chromosomes (XXX, XO, XXY, etc.), hormones, and physical characteristics outside of the male/female binary, who are known as intersex. Persons with intersex characteristics face unique challenges to fit into the male/female binary, including genital mutilation without consent, body image issues, and restrictions to compete in sporting events, among others.

Gender identity, on the other hand, is our personal sense of how we feel, see, and identify as a boy/man, girl/woman, both, neither, or combination.

When a child is born, she/he/zie[1] is assigned a category based on their genitals. For example, a child with a vagina is assigned female/girl at birth, and subsequently expected to perform gender roles specific to that identity such as cooking, cleaning, and being submissive, among others; while those assigned male/boy at birth are expected to be strong, aggressive, protective and so on. However, these assignments and assumptions are not accurate all the time, as our genitals do not determine our gender. Sex and gender are two different categories, and determined by different components of our body.

People whose lived experiences match the sex and gender they were assigned at birth are known as cisgender, while people whose lived experiences do not match the sex and gender they were assigned at birth are known as transgender, genderqueer, genderfluid and others.

A study conducted in January 2015 of 32 transgender children aged between five and twelve, led by psychological scientist Kristina Olson of the University of Washington, found that “the gender identity of these children is deeply held and is not the result of confusion about gender identity or pretense.” The researchers noted that “our results support the notion that transgender children are not confused, delayed, showing gender-atypical responding, pretending, or oppositional – they instead show responses entirely typical and expected for children with their gender identity.”

The researchers found responses from transgender children were indistinguishable from those from cisgender children. The data from transgender girls showed the same pattern as the data from cisgender girls and the data from transgender boys showed the same pattern as the data from cisgender boys. For instance, transgender girls preferred to be friends with other girls and they tended to prefer toys and foods that other girls liked, just like cisgender girls.

Understanding gender dysphoria

In addition, the Diagnostic Statistical Manual (DSM) 5 explains gender dysphoria as something experienced by people whose gender assigned at birth differs from their lived experiences. The DSM-5 further provides recommendations to reduce stress and anxiety caused by inability to express their authentic gender identity.

The DSM-5 further rightly emphasizes that gender dysphoria is not a mental health disorder. Gender identity disorder (GID) was replaced with gender dysphoria in the latest DSM to avoid stigma and ensure access to care and support for people who do not identity with the gender assigned at birth based on their genitals.

Gender diversity throughout the history of humanity

Transgender and gender-diverse persons have always existed throughout the history of humanity. Michael Peletz in his book Gender Pluralism in South East Asia documents the existence of sida-sida, gender-diverse identities similar to present-day transgender persons, in the palaces of Negeri Sembilan, Kelantan, Johor, and other parts of the Peninsula Malaya and parts of Indonesia. Sida-sida resided in the inner chambers of the palace, and were ‘entrusted with the sacred regalia and the preservation of the ruler’s special powers’.

Further references to sida-sida can be found in the Hikayat Melayu, such as Hikayat Amer Hamzah. Professor Datuk Dr. Shamsul Amri Baharuddin, a Malaysian anthropologist, also provides a first-hand account of seeing sida-sida in a palace as a child, describing them as people who were assigned male at birth, who dressed and performed gender roles of women.

In Borneo, there are accounts of identities such as manang bali, basir, and balian are described as people who were assigned male at birth, who embodied female identity and performed gender roles performed by cisgender women. Basir, in Gender Pluralism in South East Asia, are described as someone who “dresses like a woman in private life as well, and parts their hair in the middle of their forehead just like a (cisgender) woman.” Manang bali, basir and balian were also ritual specialists, shamans and healers, among others.

Given developments in the understanding of gender, many countries in Latin America, South Asia, Europe, North America and others have introduced gender recognition laws that allow transgender persons to change their name and gender markers in their legal documents without medical interventions or surgeries. The process is envisioned to be ”quick, transparent and accessible” gender recognition procedures, based on self-determination. The Gender Identity, Gender Expression and Sex Characteristics Act in Malta, for example, requires a simple declaration based on a person’s self-determination procedure before a notary, and prohibits requests for medical information. The entire process does not exceed 30 days.

Reality in Malaysia

Discrimination and violence towards transgender persons is a phenomenon that began in the 80s. Prior to that time, transgender persons enjoyed some rights, including being able to change their name and gender identity in their legal documents, namely identification cards, based on operative status.

It is time for people to understand that trans persons are normal, and are not in any shape or form pretending, cross dressing, going though a phase, or uncertain of their gender identity. Transgender persons are merely expressing themselves, like cisgender persons.

The lack of understanding of sex and gender has caused stigma, discrimination, violence and barriers to people being their authentic selves. Thus, it is imperative for people to educate themselves and each other about the basic concepts of sex and gender guided by lived experiences of people and evidence-based approaches.